Tag Archive for: email scandal

Posts

The Blame Comey Movement

November 11, 2016/41 Comments/in 2016 Presidential Election /by emptywheel

There is a big rush from commentators on all sides to blame Jim Comey for the election result. And while normally I’m happy to blame Comey for things, I’m not convinced we have data to support that claim here, at least not yet.

The claim comes from two places. First, this description of how Trump’s analysts responded after discovering rural whites were voting at higher rates than expected.

Trump’s analysts had detected this upsurge in the electorate even before FBI Director James Comey delivered his Oct. 28 letter to Congress announcing that he was reopening his investigation into Clinton’s e-mails. But the news of the investigation accelerated the shift of a largely hidden rural mass of voters toward Trump.

Inside his campaign, Trump’s analysts became convinced that even their own models didn’t sufficiently account for the strength of these voters. “In the last week before the election, we undertook a big exercise to reweight all of our polling, because we thought that who [pollsters] were sampling from was the wrong idea of who the electorate was going to turn out to be this cycle,” says Matt Oczkowski, the head of product at London firm Cambridge Analytica and team leader on Trump’s campaign. “If he was going to win this election, it was going to be because of a Brexit-style mentality and a different demographic trend than other people were seeing.”

Trump’s team chose to focus on this electorate, partly because it was the only possible path for them. But after Comey, that movement of older, whiter voters became newly evident. It’s what led Trump’s campaign to broaden the electoral map in the final two weeks and send the candidate into states such as Pennsylvania, Wisconsin, and Michigan that no one else believed he could win (with the exception of liberal filmmaker Michael Moore, who deemed them “Brexit states”). [my emphasis]

And from this letter from Hillary’s pollster Navin Nayak.

We believe we lost this election in the last week. Comey’s letter in the last 11 days of the election both helped depress our turnout and also drove away some of our critical support among college-educated white voters — particularly in the suburbs. We also think Comey’s 2nd letter, which was intended to absolve Sec. Clinton, actually helped to bolster Trump’s turnout.

Navak is presumably the same person who missed the surge in rural areas that Trump was seeing, and therefore partly responsible for Clinton’s belated attention to MI and WI. No matter what caused surges in Trump’s support, not responding to it was a key reason for Hillary’s loss. So Navak has a big incentive to blame others.

After saying everything was going swimmingly in early turnout (without noting low African American turnout in that early vote), Navak tells this story about the last week.

But then everything changed in the last week.

Voters who decided in the last week broke for Trump by a larger margin (42-47). These numbers were even more exaggerated in the key battleground states.

There are two major events that happened in the last week:

Director Comey released his first letter 11 days out from the election, which likely helped to depress turnout among Hillary’s supporters. It made Sec. Clinton’s e-mail the focus of the campaign for half the remaining 10 days.

After seeing record early vote numbers, there was a significant drop in Election Day turnout, particularly among Hillary supporters, and this was noticeable in both larger cities such as Philadelphia, Raleigh-Durham, Milwaukee, Detroit and the suburbs surrounding these and other cities.

The two days before Election Day, Director Comey released a 2nd letter, which energized Trump supporters. [emphasis original]

What these two pieces — from Trump’s data analyst and Hillary’s pollster — suggest is a correlation between the Comey letter and Trump’s improved chances. But there’s no proof of causation — certainly not that Comey is the primary explanation.

In fact, temporally, the correlation is not perfect. Trump’s analysts say the trend started before the Comey letter. This was a weird election, but it is still highly unlikely that a letter released on October 28 can entirely explain a trend that started before October 28.

Navak is a lot squishier on timing. He says the trend happened in the last week. But of course, the letter (and the blizzard of press coverage) came out earlier than that. Precisely when did he see things start going south? He doesn’t say in his email but if it was really just the last week, then that timing doesn’t make sense either.

Then there’s the other detail that Navak does tell us: the move away from Hillary happened more in the “key battleground states.” That got me wondering why voters in key battleground states would be more responsive to Comey’s letter than voters in red or blue states.

When I raised this on Twitter, a lot of people said swing state residents would be more bombarded with discussions about emails in the last two weeks. But aside from people who went to a Trump rally (which is admittedly thousands of people, though presumably hard core Trump supporters more than late deciders), they wouldn’t necessarily have. Trump’s final ad, which was very good and pretty reminiscent of Obama’s election ads, only referred to the emails once (albeit right at the beginning, just 5 seconds in), and even then only visually, appearing as Trump said “corrupt.” The emails were just one part of Trump’s larger narrative about a corrupt establishment. The rest of Trump’s ad played to economic anxieties, with dog whistles to anti-Semitism and xenophobia, but not the aggressive ones you’d see in his rallies.

Hillary’s final ad meanwhile (at the same link), was far weaker, basically just saying Trump is a dick but without naming him. So for those who decided based on the content of these ads (I personally didn’t see many super PAC ads, though they may be a factor), the emails probably weren’t the deciding factor, the quasi-empowering message probably was more likely to have been.

And look at the data, above, from Nate Silver’s analysis. It is absolutely true that late-deciding voters in WI, MI, IA, PA, and FL went disproportionately for Trump. They did too in UT, which is unsurprising, but which is also a useful example because it suggests one of the other things people were doing in the last week: Deciding whether to vote a third party candidate, Evan McMullin, or not. Indeed, polling averages show that Trump’s late surge nationally came in conjunction with what was a longer, slower slide in Gary Johnson’s support. I think it’s possible that the emails affected people’s decision to vote third party or even among Republicans who might have voted for Hillary. But one thing that appears to partly explain Trump’s rise at the end is just a very typical decision among people who consider voting third party to in the end support the major candidate. Remember, too, that Trump’s aides had finally gotten him onto a script for these last days, so he was saying and doing fewer offensive things just as these late deciders decided.

Finally, look at those other swing states. In OH, the difference was much smaller. In NV, later breakers actually broke for Hillary. In GA that was even more pronounced.

Perhaps most interesting of all, however, is VA. VA — especially its northern suburbs where Hillary got most of her support — is packed with security clearance holders, precisely the kind of people who’ve expressed the most exasperation about a perceived double standard in the treatment of Hillary. Perhaps that sentiment, which I’ve seen expressed by individuals in a number of places — is overstated. Maybe some clearance holders who also understand overclassification aren’t as bugged by the email scandal as others. In any case, in VA, the state that probably has a higher chunk of clearance holders than any other, broke slightly for Hillary after the Comey letters. Why would Virginians treat the Comey letter so much differently than Wisconsonites and Michiganders?

One final thing. In the days after the first Comey letter, polls actually asked how much it would influence voters’ decision. One poll showed as many undecided voters saying it made no difference as those who said it did.

Thirty-nine percent of voters said the additional review of emails in the Clinton case had no bearing on their vote in November, while 33 percent it made them much less likely to vote for Clinton.

But most of those voters are already aligned against Clinton. Nearly two-thirds of Trump voters, 66 percent, said it makes them much less likely to vote against Clinton.

Among the small pocket of undecided voters remaining, 42 percent said it made them less likely to vote for Clinton, including 30 percent who said it made them much less likely to vote for her. But just as many, 41 percent, said it makes no difference either way.

In others, there was a bigger difference, even affecting Clinton supporters.

An ABC/Washington Post tracking survey released Sunday, conducted both before and after Comey’s letter was made public on Friday, found that about one-third of likely voters, including 7 percent of Clinton supporters, said the new e-mail revelations made them less likely to support the former secretary of state.

The poll found that Clinton received support from 46 percent of likely voters to Trump’s 45 percent, suggesting the race is a toss-up. That contrasts with the 12-point advantage that Clinton held in the same poll a week ago. Trump’s numbers have crept up, in part, as more Republicans have gotten behind their candidate.

A CBS tracking poll of likely voters in battleground states — the 13 states that could swing the Nov. 8 election — released on Sunday found that among voters overall, 71 percent say it either won’t change their thinking, or in some cases, they had already voted.

I’m not aware of any polls that asked about this after Comey’s second letter (and I’m somewhat baffled about how it could energize Trump voters in the way Navak claims), so it’s unclear how these numbers moved after she was re-exonerated.

The election was incredibly close. So if those 7% of Hillary voters who, the weekend after the first Comey letter, considered his announcement significant enough that it might decide their vote instead decided to stay home, it may well have been decisive. But we don’t have that data yet.

Let me close by emphasizing what I am not saying. I am not saying the email scandal didn’t affect the election at all. I am not saying that the press’ disproportionate coverage of it as opposed to Trump’s own corruption didn’t affect the election. Nor am I saying that the Comey letter definitively did not affect the election.

Rather, I’m just saying we don’t have proof that a somewhat inexact correlation between Trump’s late surge and the Comey letter was the cause of his late surge. I’m happy to be convinced otherwise. But right now I’m not seeing it.

Update: This David Plouffe analysis is worth reading in the context of this post for two reasons. First, he notes that Gary Johnson lost support primarily among his older supporters, but his younger supporters stayed with him. This means that his decline likely was tied to a Trump increase, and what remained did hurt Hillary disproportionately.

And here’s what he says about Comey.

JAMES COMEY From the last debate until Election Day, the dominant news was the F.B.I. and Mrs. Clinton’s emails along with a drumbeat of daily WikiLeaks dumps. Postelection research will help shed light here, but the small number of undecided voters at the end should have broken at least equally based on their demographic and voting history. If exit polls are accurate, they moved to Mr. Trump much more than to Mrs. Clinton in certain battleground states, and it’s quite possible the shadow created by the F.B.I. director was the major culprit. Oct. 19, the day of the final debate, was a long 20 days to Nov. 8, and the atmosphere was far from ideal for the Democratic candidate.

Update: On Twitter, Jamison Foser explained why the second letter would invigorate Trump’s supporters: because it fed the narrative that Hillary is corrupt and always gets away with it. That makes sense.

Another person pointed out that the differential impact in VA may be due to Tim Kaine’s influence, which is also a good explanation.

The Story About Judicial Dysfunction Behind the Comey Whiplash

October 30, 2016/58 Comments/in Department of Justice, FISA, Law /by emptywheel

I’ve been home from Europe for less than a day and already I’m thinking of sporting a neck collar for the whiplash I’ve gotten watching the wildly varying Jim Comey opinions.

I’m speaking, of course, of the response to Jim Comey’s highly unusual announcement to sixteen Chairs and Ranking Members of congressional committees (at least some of which Comey did not testify to) that the investigative team — presumably on the Clinton case — briefed him Thursday that FBI discovered additional emails in an unrelated case — now known to be the investigation into Anthony Weiner allegedly sexting a 15 year old — and he approved their request to take the steps necessary to be able to review those emails.

Effectively, the Weiner investigators, in reviewing the content from devices seized in that investigation, found emails from Huma Abedin, told the Hillary investigative team, and they’re now obtaining a warrant to be able to review those emails.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

For the record, I think his initial, completely inappropriate statements made this inevitable. He excuses Friday’s statement as formally correcting the record of his testimony. The claim is undermined by the fact that not all recipients of the letter had him testify. But I think once you start the process of blabbing about investigations, more blabbing likely follows. I don’t mean to excuse this disclosure, but the real sin comes in the first one, which was totally inappropriate by any measure. I’m also very unsympathetic with the claim — persistently offered by people who otherwise cheer Comey — that he released his initial statement to help Loretta Lynch out of the jam created by her inappropriate meeting with Bill Clinton; I think those explanations stem from a willful blindness about what a self-righteous moralist Comey is.

Of course I’ve been critical of Comey since long before it was cool (and our late great commenter Mary Perdue was critical years before that).

But I’d like to take a step back and talk about what this says about our judicial system.

Jim Comey doesn’t play by the rules

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election. The op-ed insinuates that Comey is a “self-aggrandizing crusader[] on [a] high horse” before it goes on to slam him for making himself the judge on both the case and Hillary’s actions.

James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

But the real meat is that there’s a rule against statements like the one Comey made, and Comey broke it.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

If Comey is willing to break this rule in such a high profile case, then what other rules is he breaking? What other judgements has Comey made himself arbiter of? Particularly given Comey’s persistent discussion of FBI’s work in terms of “good guys” and “bad guys” — as opposed to criminal behavior — that seems a really pertinent question.

As with James Clapper, Loretta Lynch can’t control Comey

Gorelick (who has been suggested among potential Clinton appointees) and Thompson go easier on Lynch, however, noting that she didn’t order him to stand down here, but ultimately blaming Comey for needing to be ordered.

Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.

But since John Cornyn confronted Lynch in March about who would make decisions in this case — “Everyone in the Department of Justice works for me, including the FBI, sir,” Lynch forcefully reminded Cornyn — it has been clear that there’s a lot more tension than the org chart would suggest there should be.

The NYT provides more details on how much tension there is.

The day before the F.B.I. director, James B. Comey, sent a letter to Congress announcing that new evidence had been discovered that might be related to the completed Hillary Clinton email investigation, the Justice Department strongly discouraged the step and told him that he would be breaking with longstanding policy, three law enforcement officials said on Saturday.

Senior Justice Department officials did not move to stop him from sending the letter, officials said, but they did everything short of it, pointing to policies against talking about current criminal investigations or being seen as meddling in elections.

And it’s not just Lynch that has problems managing FBI.

In a response to a question from me in 2014 (after 56:00), Bob Litt explained that FBI’s dual role creates “a whole lot of complications” and went on to admit that the office of Director of National Intelligence — which is supposed to oversee the intelligence community — doesn’t oversee the FBI as directly.

Because FBI is part of the Department of Justice, I don’t have the same visibility into oversight there than I do with respect to the NSA, but the problems are much more complicated because of the dual functions of the FBI.

Litt said something similar to me in May when we discussed why FBI can continue to present bogus numbers in its legally mandated NSL reporting.

Now these are separate issues (though the Clinton investigation is, after all, a national security investigation into whether she or her aides mishandled classified information). But if neither the DNI nor the AG really has control over the FBI Director, it creates a real void of accountability that has repercussions for a whole lot of issues and, more importantly, people who don’t have the visibility or power of Hillary Clinton.

The FBI breaks the rules all the time by leaking like a sieve

Underlying this entire controversy is another rule that DOJ and FBI claim to abide by but don’t, at all: FBI is not supposed to reveal details of ongoing investigations.

Indeed, according to the NYT, Comey pointed to the certainty that this would leak to justify his Friday letter.

But although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out — and it was sure to leak out, he concluded — he risked being accused of misleading Congress and the public ahead of an election, colleagues said.

Yet the US Attorney’s Manual, starting with this language on prejudicial information and continuing into several more clauses, makes it clear that these kinds of leaks are impermissible.

At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Comey, the boss of all the FBI Agents investigating this case, had another alternative, one he should have exercised months ago when it was clear those investigating this case were leaking promiscuously: demand that they shut up, conduct investigations of who was leaking, and discipline those who were doing so. Those leaks were already affecting election year concerns, but there has been little commentary about how they, too, break DOJ rules.

But instead of trying to get FBI Agents to follow DOJ guidelines, Comey instead decided to violate them himself.

Again, that’s absolutely toxic when discussing an investigation that might affect the presidential election, but FBI’s habitual blabbing is equally toxic for a bunch of less powerful people whose investigative details get leaked by the FBI all the time.

[Update: Jeffrey Toobin addresses the role of leaks more generally here, though he seems to forget that the Hillary investigation is technically a national security investigation. I think it’s important to remember that, especially given Hillary’s campaign focus on why FBI isn’t leaking about the investigation into Trump’s ties to Russia, which would also be a national security investigation.]

Warrantless back door searches do tremendous amounts of damage

Finally, think about the circumstances of the emails behind this latest disclosure.

Reports are currently unclear how much the FBI knows about these emails. The NYT describes that the FBI seized multiple devices in conjunction with the Weiner investigation, including the laptop on which they found these emails.

On Oct. 3, F.B.I. agents seized several electronic devices from Mr. Weiner: a laptop, his iPhone and an iPad that was in large measure used by his 4-year-old son to watch cartoons, a person with knowledge of the matter said. Days later, F.B.I. agents also confiscated a Wi-Fi router that could identify any other devices that had been used, the person said.

While searching the laptop, the agents discovered the existence of tens of thousands of emails, some of them sent between Ms. Abedin and other Clinton aides, according to senior law enforcement officials. It is not clear if Ms. Abedin downloaded the emails to the laptop or if they were automatically backed up there. The emails dated back years, the officials said. Ms. Abedin has testified that she did not routinely delete her emails.

Presumably, the warrant to seize those devices permits the FBI agents to go find any evidence of Weiner sexting women (or perhaps just the young woman in question).

And admittedly, the details NYT’s sources describe involve just metadata: addressing information and dates.

But then, Comey told Congress these emails were “pertinent” to the Clinton investigation, and other details in reports, such as they might be duplicates of emails already reviewed by the FBI, suggest the Weiner investigators may have seen enough to believe they might pertain to the inquiry into whether Clinton and her aides (including Huma) mishandled classified information. Moreover, the FBI at least thinks they will be able to prove there is probable cause to believe these emails may show the mishandling of classified information.

Similarly, there are conflicting stories about whether the Hillary investigation was ever closed, which may arise from the fact that if it were (as Comey had suggested in his first blabby statements), seeking these emails would require further approval to continue the investigation.

The point, though, is that FBI would have had no idea these emails existed were it not for FBI investigators who were aware of the other investigation alerting their colleagues to these emails. This has been an issue of intense litigation in recent years, and I’d love for Huma, after the election, to submit a serious legal challenge if any warrant is issued.

But then, in this case, Huma is being provided far more protection than people swept up in FISA searches, where any content with a target can be searched years into the future without any probable cause or even evidence of wrong-doing. Here, Huma’s emails won’t be accessible for investigative purpose without a warrant (in part because of recent prior litigation in the 2nd Circuit), whereas in the case of emails acquired via FISA, FBI can access the information — pulling it up not just by metadata but by content — with no warrant at all.

[Update: Orin Kerr shares my concerns on this point — with the added benefit that he discusses all the recent legal precedents that may prohibit accessing these emails.]

This is a good example of the cost of such investigations. Because the FBI can and does sweep so widely in searches of electronic communications, evidence from one set of data collection can be used to taint others unrelated to the crime under investigation.

All the people writing scathing emails about Comey’s behavior in this particular matter would like you to believe that this issue doesn’t reflect on larger issues at DOJ. They would like you to believe that DOJ was all pure and good and FBI was well-controlled except for this particular investigation. But that’s simply not the case, and some of these issues go well beyond Comey.

Update: Minor changes were made to this post after it was initially posted.